2 Whart. 501 | Pa. | 1837
This case is weaker for the prisoner than the The Commonwealth v. The Sheriff of Allegheny, (16 Serg. & Rawle, 304,) in which an accessary who had refused to be tried before the principal was convicted, was denied the benefit of the habeas corpus act. Here the prisoner lay by during the first term, and claims to be discharged because he. was not tried at the second, during the pendency of preliminary objections newly raised by himself. That is certainly equivalent to a postponement with his consent. But there is' another fatal objection, which was not noticed there, because it was not thought of, and because it was desirable to have the judgment of the court on the principle. It is, that the power to discharge, is confided by the third section of the act, to the judges . of the court in which the indictment is pending; and it is not to be denied that it could not be so beneficially lodged elsewhere, for no other court could be so accurately informed of the circumstances. In order to raise the question here, it was necessary to procure from the keeper of the prison, a return of facts and circumstances not within his official cognizance; and we are not aware that he would be answerable to the Commonwealth in an action for their falsity. We are bound to allow the writ; but in future, if the commitment be unexceptionable in the frame of it, we shall not consider ourselves bound to look further.
Prisoner remanded.